with whom was Mr. Justice Holmes, concurring.
My reasons for agreeing to the conclusion announced by the court are separately stated to prevent all implication of an expression of opinion on my part as to a subject which in my judgment the case does not require and which, as it is given me to see it, may not be made without a plain violation of my duty.
The question which the case raises, by way of a suit to recover duties paid on goods brought from the Isle of Pines, is whether that island, by the treaty with Spain, became a part of the United States, or was simply left or made a part of the Island of Cuba, over which the sovereignty of Spain was relinquished.
I accept the doctrine which the opinion of the court announces, following Jones v. United States, 137 U. S. 202, that “who is the sovereign de jure or de fado of a territory is not a judicial but a political question, the determination of which by the legislative and executive departments of any government conclusively binds the judges as well as other officers,. citizens and subjects of that government.” That the legislative and executive departments have conclusively settled the present status of the' Isle of Pines as de facto a part of Cuba and have left open for future determination the de jure claim, if any, of the United States to the island, as the court now declares, is to me beyond possible contention. Thus, by the amendment to the act of 1891, which was enacted to determine the de facto position of the island and to furnish a rule for the guidance of the executive authority in dealing in the future with the island, it was expressly provided “that the Isle of Pines shall be omitted from the proposed constitutional boundaries of Cuba, the title thereto being left to future adjustment by treaty.” So, also, when the Island of Cuba was'turned over to the Cuban government by the military authority of the United States, that government was expressly notified by such-authority, under .the direction of the President, that *274whilst the de facto position of the Isle of Pines as a part of Cuba was not disturbed it must be understood that its de jure relation was reserved for future determination by treaty between Cuba and the United States. And this notification and relation was in terms accepted by the President of the Republic of Cuba. If the opinion now announced stopped with these conclusive expressions I should of. course have nothing to say. But it does not do so. Although declaring that the de facto position of the Isle of Pines as resulting from legislative and executive action is binding upon courts, and although referring to the conclusive settlement of that de facto status and the reservation by the legislative and executive departments of the determination of the de jure status for future action, the opinion asserts that it is open and proper for the court to express an opinion upon the de jure status, that is, to decide upon the effect of the treaty. In doing so it is declared that all the world knew 'that the Isle of Pines was an integral part of Cuba, this being but a prelude to an expression of opinion as to the rightful construction of the treaty. To my mind any and all expression of opinion concerning the effect of the treaty and the de jure relation of the Isle of Pines is wholly unnecessary and cannot be indulged in without disregarding the very principle upon which the decision is placed, that is, the conclusive effect of executive and legislative action. In other words, to me it seems*, that the opinion, whilst recognizing the force of executive and legislative action, .necessarily disregards it. This follows, beeause the views which are expressed on the subject of the meaning of. the treaty amount substantially to declaring that the past action of the executive and legislative departments of the government on- the subject have been wrong, and that any future attempt by those departments to proceed upon the hypothesis that the de jure status of the island is unsettled will be a violation of the treaty as no.w unnecessarily interpreted.
Mr. Justice Holmes concurs.